Anti-lock braking system on the ABS juggernaut?

The Law Society council has at last decided to approve the SRA applying to become a licensing authority for ABSs (see  But we might still see moves to derail the application – the Sole Practitioners Group or others could yet press for a special general meeting (see  So let me get a few things off my chest…

I am broadly supportive of ABSs, though not uncritically so.  We have had more than six years since Sir David Clementi first proposed them.  They are not a new idea; and it’s not as if no-one has spent any time thinking about both the principles and the detail since then.  It’s therefore disturbing to hear a suggestion that a special general meeting vote would ensure that “those members of the profession who up to now have little knowledge of ABS will be made aware of its implications”.

Where have these members been for the past six years?  Do they not read the national and legal press?  What message does such a claim send to the public and clients about the regulatory and commercial awareness of their advisers if supposedly well-informed and up-to-date professionals have missed (or not yet started thinking seriously about) something so fundamental to their businesses?

Such gaps in knowledge or appreciation do not, of course, make the policy behind the introduction of ABSs inherently right.  There are certainly risks with ABSs: the Legal Services Act and the licensing rules recognise and address them.  ABSs will not be an unalloyed blessing for consumers, either.  But that does not make them inherently wrong.  The Legal Services Act was not party political legislation, so trying to persuade the new Government or MPs to stop the introduction of ABSs might not garner much political support.  It’s also difficult to see votes or further savings to the public purse from such a move.  Personally, I don’t think we’ll hear the screech of tyres as the juggernaut is brought to a halt.

Generally, protestations by lawyers trying to stop developments that would encourage or force them to act differently are met with (at best) wry smiles.  Too few people outside the rarefied atmosphere of legal practice believe that only lawyers can be trusted with legal issues.  Lawyers might be right in suggesting that their input would be better for the client.  But that argument is far from being taken for granted by anyone else.

It also flies somewhat in the face of other evidence that lawyers are not as good or as accessible as they think they are – such as the volume of unresolved legal needs of clients who are not aware they have a legal problem, or who are but choose not to take it to a lawyer; the number of complaints against a supposedly high-quality and ethical profession; and the views of professional indemnity insurers.  Each of these suggests that competition has a role to play in improving the accessibility, efficiency and value (and even, dare I say it, the quality) of legal services for the ordinary consumer.

It is not the job of regulation or regulators to protect providers from competition.  It is their job to provide an effective regulatory framework that supports fair competition.  Parliament has decided that ABSs are to be part of this regulatory and competitive landscape.

So it’s unlikely that the juggernaut can be stopped.  Could it be slowed down?  I’m all for having a better system than a rushed one.  But, to repeat, the ABS framework has been worked on for six years.  Spending more time and more resource will not make it perfect – that’s an ideal that will never be attained, as we know from every other regulatory system.  Nor will any framework, however robust, prevent unethical, inefficient or anti-competitive behaviour.  Not all solicitors are ethical and high quality; not all owners or managers of ABSs will be unethical and poor quality.  So, yes, it could be slowed down; but it shouldn’t be.

Subject the necessary Parliamentary timetable to complete the process for licensing ABSs, it’s now difficult to see great benefit in seeking to delay their introduction.  Indeed, many would-be entrants (and even, to be fair, a good number of lawyers who relish the opportunity to be in business in a different way) could argue that they have already waited long enough.  Everyone has had enough time to prepare.  Some have taken advantage of the six-years’ notice; others have not.  If that time was wasted, it’s hardly appealing to ask politicians to intervene or regulators to think again.

With the Law Society’s decision to allow the SRA to seek licensing approval for ABSs, the momentum is likely to gather pace.  Now is not the time for the drivers to hit the brakes … or the detractors to lie in the road.

Sole practitioners and regulation

I was interested in a piece in this week’s Law Society Gazette (see  The Sole Practitioners Group has warned that treating sole practitioner firms (SPFs) in the same way as other firms could lead to many of them no longer practising.

The SRA wants to simplify the regulatory framework, and therefore SPFs would have to appoint a compliance officer for legal practice (CoLP) and a compliance officer for finance and administration (CoFA) – in the same way that other firms and ABSs will be required to do.  The SRA recognises that the same person might be appointed to both roles (although the CoLP must be legally qualified).  But the SPG claims that individuals within SPFs would not have the time to perform both roles effectively.

Now, I have a good deal of sympathy for sole practitioners having to cope with an ever-increasing compliance burden.  It is much the same for many small businesses.  But I have to say that, if a sole practitioner wants the privilege of providing legal services protected by statute (the reserved activities), surely they can’t complain if they are required to be accountable to the regulator for those services through an individual who carries the responsibility?

It is undoubtedly relatively more burdensome for one individual in a sole practice or small firm to discharge compliance functions.  However, it seems to me that clients and the public have a legitimate expectation that those who are regulated will be properly supervised by the regulator.  If SPFs and other small firms cannot do this effectively (apparently on their own admission – or, at least, the SPG’s), this does rather support the argument that they are too small to be economically viable and present too great a risk to the public and the reputation of the profession.

Was that the conclusion the SPG intended us to draw?  Does the Law Society agree?  Does the SRA know?  Are the professional indemnity insurers watching?